Dictor v. David & Simon, Inc.

• Decision Date: 14 February 2003
• Docket Number: No. B159531.,B159531.
• Citation: 130 Cal.Rptr.2d 588,106 Cal.App.4th 238
• Court: California Court of Appeals Court of Appeals
• Parties: Johanne DICTOR, Plaintiff and Appellant, v. DAVID & SIMON, INC. et al., Defendants and Respondents.

130 Cal.Rptr.2d 588

106 Cal.App.4th 238

Johanne DICTOR, Plaintiff and Appellant, v. DAVID & SIMON, INC. et al., Defendants and Respondents.

No. B159531.

Court of Appeal, Second District, Division 5.

February 14, 2003.

Law Offices of Cary L. Dictor and Cary L. Dictor, Alameda, for Plaintiff and Appellant.

Allen K. Brown, Whittier, for Defendant and Respondent, David & Simon, Inc.

Hosp, Gilbert, Bergsten & Phillips, F. Phillip Hosp, Pasadena, and Jay D. Brown for Defendant and Respondent, Julian Gonzalez.

TURNER, P.J.

I. INTRODUCTION

Plaintiff, Johanne Dictor doing business as CPCI, the assignee of Manhattan Transportation Company, Incorporated (Manhattan), appeals from a summary judgment entered in favor of defendants, Julian Gonzalez doing business as Gonzalez Trucking, and David & Simon, Incorporated doing business as GTW (GTW). Plaintiff sought damages for computer equipment that was lost while being shipped in interstate commerce. Based upon a bill of lading which was prepared and signed by an employee of plaintiff's assignor, Manhattan, the trial court held the total amount plaintiff could recover was $7,106. Because the trial court correctly found this case is controlled by the Carmack Amendment to the Interstate Commerce Act and the $7,106 computation in the bill of lading must be enforced, we affirm the judgment.

II. BACKGROUND

A. The Pleadings

The first amended complaint, which is the operative pleading, alleged that Manhattan hired defendant, GTW, to transport by truck computer equipment from Carson, California to Las Vegas, Nevada. The computer equipment had a market value of no less than $267,488. Thereafter, GTW hired Mr. Gonzalez and Bolanos Trucking to deliver the computer equipment. (The first amended complaint identified Bolanos Trucking as a defendant. But Bolanos Trucking has never appeared in this lawsuit.) The complaint alleged the existence of an oral agreement between Manhattan and GTW. Under the terms of the oral agreement, GTW would reimburse Manhattan at full replacement value for damage to the computer equipment. It was further orally agreed coverage for such replacement value would be no less than $500,000 secured by a certificate of insurance naming Manhattan as an additional insured for any loss for the shipment. While the computers were in defendants' custody, the first amended complaint alleged they were lost. A claim was made by the owner of the computer equipment against Manhattan, whose insurer paid $267,488 as fair and reasonable compensation for the loss. Plaintiff alleged that $267,488 plus interest was due for the total loss sustained. Plaintiff sought to recover this amount based on causes of action for: contract breach pursuant to federal statutory law, the Carmack Amendment, title 49, United States Code section 14706 et seq. (first); negligence (second); and conversion (third).

In addition, plaintiff asserted a cause of action (fourth) to reform the contract between Manhattan and GTW. Plaintiff alleged that Manhattan had arranged the shipping of the computer equipment through a third party broker. Manhattan allegedly erred in issuing transportation documents which failed to reflect the following key terms: (1) GTW would reimburse Manhattan for any loss at full replacement value; (2) coverage assuring a replacement value of no less than $500,000 would be evidenced by a certificate of insurance from a cargo insurer naming Manhattan as an additional insured; and (3) the shipment would be directly trucked by GTW rather than subcontracted to another trucking firm. Plaintiff sought damages in the sum of $302,589.12.

B. Summary Judgment Motion and the Undisputed Evidence

Mr. Gonzalez and GTW moved for summary judgment or adjudication on the grounds that a bill of lading issued by Manhattan limited its assignee's damages and no reformation of the contract was warranted. Mr. Gonzalez and GTW argued that plaintiff was only entitled to judgment in the sum of $7,106. The separate answers filed by GTW and Mr. Gonzalez both alleged that plaintiffs damages were limited by the bill of lading issued January 25, 2000, by Manhattan.

Documents filed in support of and in to opposition the summary judgment motion established the following undisputed facts. John Healy, Manhattan's president, described his company's relationship with Compaq Computer Company as well as other trucking firms. This relationship existed prior to the loss which gave rise to the present lawsuit. Mr. Healy declared that Compaq Computer Company required its carriers to have sufficient insurance to respond to potential claims and agree to indemnify any loss at replacement value. Manhattan had such an agreement with Compaq Computer Company in 1999 and 2000. In 1999, Manhattan established a business relationship with GTW. Well prior to the loss which gave rise to the present lawsuit, Mr. Healy spoke by telephone with Lou Gomez, GTWs employee. Mr. Healy confirmed that future shipments, for which GTW would be hired, were for the benefit of Compaq Computer Company as shipper and were of high value consisting of computers and related equipment. Mr. Healy informed Mr. Gomez that any single shipment would be valued at a range of approximately $200,000 through $500,000. Mr. Healy also informed Mr. Gomez that GTW would be required to maintain financial responsibitity to cover the full value of replacement cost of any loss or damage to the shipments. Mr. Gomez furnished Manhattan with certificates of insurance. Mr. Gomez assured Mr. Healy that GTW had its own employees doing its trucking and did not subcontract its jobs to other truckers.

Mr. Gonzalez, a truck owner operator, was hired to transport computer equipment for GTW. He was paid a standard rate for the trip from Carson, California to Las Vegas, Nevada. Mr. Gonzalez did not see what was being placed in his truck. Mr. Gonzalez was instructed to go to the warehouse office where he was presented with a bill of lading, dated January 25 2000, which had been prepared by Manhattan. The bill of lading provided that the sender was "Q Run Corporation" located in Costa Mesa, California. The destination of the shipment was an Office Max store in Las Vegas, Nevada. The bill of lading indicated that the shipment consisted of "Compaq PC 7360" weighing a total of 11,804 pounds in 26 pallets. The January 25, 2000, bill of lading further provided: "Unless a greater value is declared herein, the shipper agrees and declares that the value of the property is released in an amount not exceeding $50 for any shipment of 100 pounds or less and not exceeding 50 cents per pound for any shipment weighing in excess of 100 pounds. An additional charge of $0.25 will be assessed for each $100.00 (or fraction thereof), by which the value declared exceeds $.050 per pound or $50.00 (whichever is higher)." No greater value was declared in the bill of lading. The amount indicated on the bill of lading understated the value of the computer equipment Mr. Gonzalez was transporting to Las Vegas.

Mr. Healy explained why the bill of lading dramatically understated the value of the computer equipment taken from Mr. Gonzalez's truck. Mr. Healy declared: "It is common in the trucking industry to have `off record' agreements concerning values of high value shipments and the responsibility of carriers to fully indemnify any loss or damage of such shipments at replacement values. This is because the inclusion of high valuation information on freight bills often exposes shipments to a higher risk of loss, while lacking any useful purpose. Carriers such as GTW set their rates for handling shipments, including the shipments tendered to them by Manhattan ..., without regard to `declared values' and have no separate rate structures for commodities which are given a `declared value.' At no time did [Mr.] Gomez ever suggest to me that there was any difference in the rate quotes being given to Manhattan ... based upon the requirement that GTW fully indemnify at replacement cost value for any loss or damage to shipments. Freight was tendered to GTW to fully indemnify Manhattan ... against loss and GTWs rate quotes were received and paid on that basis."

C. The Trial Court's Ruling

The trial court granted the summary judgment motion. The trial court held: (1) the contract between GTW and Manhattan was the January 25, 2000, bill of lading; (2) the contract had no "declared value" stated; (3) the bill of lading had a limitation of liability provision setting any loss at $.50 per pound; and (4) plaintiff was not entitled to reformation of the contract. The trial court's ruling further states: "The evidence indicates that Compaq and Manhattan had an agreement between themselves that Manhattan would pay full replacement for a loss. There is an absence of evidence to indicate the existence of a contract between Manhattan, GTW, or Gonzalez/Bolanos Trucking, to pay full replacement, [¶] Conversations did take place between Healy, Gomez and Schneider about insurance coverage. However, the bottom line is that Manhattan did not declare the real value on the [b]ill of [l]ading, and the law is clear that a carrier is liable only for the amount asserted on the [b]ill of [l]ading [Civil Code section] 2176." In accordance with its conclusions, the court summarily adjudicated the amount owed by defendants to be $7,106.00. After the trial court entered judgment on the first amended complaint, plaintiff filed a timely notice of appeal.

III. DISCUSSION

A. Standard of Review of Summary Judgment

In Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851, 107 Cal Rptr.2d 841, 24 P.3d 493, the Supreme Court described a party's burdens on summary judgment motions as follows: "[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. That is because of the general principle...